History and Politics Event Series Presents: The New York State Constitutional Question

Ballot Choice 2017: Open Classroom Presentation 

On November 7, 2017, the voters of New York will confront a ballot question: “Shall there be a convention to revise the constitution and amend the same?” The New York State Constitution (Article XIX) mandates that this question be presented to the voters at least every 20 years. For a brief history and discussion of the convention process, see my earlier blog post and Chair’s report from the 2017 New York State Political Science Association Meeting.

The constitutional convention question is a unique opportunity for voters to review the foundation of New York State's governance and to compel a convention to study and propose necessary changes. The best way to make an informed decision on the ballot vote is to learn everything one can about the process. With less than a month to go before the vote, many New Yorkers have heard very little about the convention, or have received misinformation about the process and possible outcomes.

To help our students and interested members of the community better understand the process and issues, the History and Politics Event Series will offer a free public lecture on the New York State Constitutional Convention Question: Ballot Choice 2017. Two of the authors of New York’s Broken Constitution (2016 SUNY-Albany Press) will address the convention question in light of New York’s constitutional history, with an emphasis on the moment of opportunity that the 2017 ballot choice represents. The presentation will be followed by an opportunity for audience Q&A. This open classroom lecture is free and open to members of the public. 

The event will begin at 6:00 pm in Room 236 Duns Scotus Hall

Daemen College Main Campus

4380 Main Street, Amherst NY   

For questions, please contact Dr. Lisa Parshall (lparshal@daemen.edu), Associate Professor of Political Science and Section Chair, State and Local Politics, New York Political Science Association (NYPSA).

About the Speakers

Christopher Bopst, Chief Legal and Financial Officer at Sam-Son Logistics
Christopher Bopst is the Chief Legal and Financial Officer at Sam-Son Logistics in Buffalo, New York. Before that, he was a constitutional litigation partner at law firms in New York and Florida. He is the co-author with Professor Peter Galie of the leading reference work on New York’s State Constitution, The New York Constitution 2nd ed.(Oxford University Press, 2012), as well as numerous articles on the state constitution. He is also a contributor to and co-editor with Peter Galie and Gerald Benjamin) of a volume of essays entitled New York’s Broken Constitution: The Governance Crisis and the Path to Renewed Greatness (SUNY Press, 2016). In 2016, he was appointed to a Judicial Task Force on the New York Constitution formed to advise the Chief Judge and the New York Court System on issues related to the upcoming vote in 2017 on the holding of a constitutional convention.

Peter J. Galie, Emeritus Professor of Political Science, Canisius College
Peter J. Galie is Emeritus Professor of Political Science, Canisius College in Buffalo, New York. He is the author of Ordered Liberty: A Constitutional History of New York (Fordham Press, 1996);with Christopher Bopst, The New York State Constitution, 2nd ed. (Oxford University Press, 2012) ; an co-editor with Christopher Bopst and Gerald Benjamin, New York’s Broken Constitution: The Crisis in Governance and the Path to Renewed Greatness (SUNY Press, 2016). Other publications include The New York Constitution and the Federal System,” in the Oxford Handbook on New York State Government (Oxford University Press, 2012) and numerous articles on state constitutional law. He was an expert witness retained by the Attorney General of New York to prepare a report for the A-G’s appellate brief in Hayden v. Pataki, “The Felony Disenfranchisement Clause of the New York Constitution 1821–1938: Background, Chronology, Origin & Purpose” (June, 2004), and co-author, amicus brief submitted to the New York Court of Appeals in the case of Skelos v. Paterson (2009) on the question: “Does the Governor have the authority to fill a vacancy in the Lieutenant-Governor’s Office by appointment?” In 2016 he was appointed to a Judicial Task Force on the New York Constitution formed to advise the Chief Judge of the Court of Appeals on issues related to the upcoming vote in 2017 on the holding of a constitutional convention.

Focusing on Constitutional Reform

Upcoming Talk: "Responding to Constitutional Imperfections: The Theory and Practice of Constitutional Amendment Throughout the United States."

On Tuesday, September 12 at 7.30 pm, Dr. Parshall, Associate Professor of Political Science, will participate in a Constitution Day Panel sponsored by the Canisius College Raichle Pre-Law Center and the Bar Association of Erie County.

The panel will examine how constitutions in the United States—federal and state—are subject to amendment. The history of amendments to the U.S. Constitution, the infrequency of amendments following the Bill of Rights, and recent efforts by state legislatures to convene a federal constitutional convention will be discussed. We will also present an overview of the various ways that state constitutions can be amended, such as through ballot initiative and legislative amendments. Given that the question of whether to hold a convention to revise the New York State Constitution will be on the ballot this November, there will be a focus on the methods by which the New York Constitution can be revised, and the reasons why voters have rejected calls for a constitutional convention in the past. The political obstacles to constitutional amendments, and the role of the legal community in helping voters navigate the competing narratives attending the process will also be considered.

Speakers will include:
Christopher Bopst, chief legal and financial officer, Sam-Son Logistics
Professor James Gardner, University at Buffalo Law School
Lisa Parshall, PhD, associate professor of Political Science, Daemen College
Robert A. Klump, director of the Frank G. Raichle Pre-Law Center, will serve as moderator.

Event Details 

Responding to Constitutional Imperfections: The Theory and Practice of Constitutional Amendment throughout the United States 

Tuesday, September 12, 2017 ~ 7:00 p.m. – 8:30 p.m. 

Canisius College, Grupp Fireside Lounge, Richard E. Winter Student Center 

1.5 CLE credits: Areas of Professional Practice (Appropriate for all attorneys): For Information see here at the Erie County Bar Association Website. 

Daemen College Students should identify themselves at the door for free admission (Please bring your student ID). 

Chair's Report on the State and Local Politics Section of the New York State Political Science Association’s 71^st Annual Conference

Why State and Local Politics Matter

I love teaching State and Local Politics. As citizens, our lives are directly impacted by the choices made by our state and local elected officials.  Polling demonstrates that citizens feel closer to and have more trust in local governing bodies than they do in our national institutions.  

Yet, there is an unfortunate lack of civic knowledge and literacy particularly regarding politics at the state level.  For many people, their daily news intake is focused on national politics (and it is not as if there is nothing to see nowadays) or on the very local -- what’s happening in their own back yard or community.  For those living outside of the capital region, the regular workings of State government are not as regularly covered by the media they consume – and what is covered may be disproportionately focused on the dysfunctional or corrupt. 

I’ll admit it: when I teach state and local government, I often focus on the dysfunction as a hook for generating student interest.  In this respect, New York is the gift that just keeps on giving.  Following a lecture just after the 2009 state senate coup, I remember a non-major approaching me after class to pronounce the whole affair as “wicked interesting” and to express shock that so many New Yorkers (himself included) could be blissfully unaware of the high drama and low comedy playing out in our statehouse.  Another semester, the class kept busy resetting the “legislative arrest clock” (seeing how many consecutive days we could go without a legislative indictment or arrest).  It was fun—until it wasn’t; until the students, as citizens, realized that we all deserved better.  And that’s what makes “gawking at the train wreck” okay – if those of us who teach state and local politics can hook our audience with the “fun” in the sometimes spectacular dysfunction, we can then turn the corner into discussing the value of being civically literate regarding the role, function, and purpose of local government.  From that somewhat unhappy starting place, we can move on to more productive avenues of discussion, including the various paths for meaningful reform. 

Since 2009 (with a hiatus in 2015), I have had the privileged to serve as the chairperson of the State and Local Politics section of the New York State Political Science Association (NYSPSA).  I have never been more convinced of the vibrancy and importance of state and local governance, or of contributions made by the academic study of state and local affairs.  My role with this professional organization allows me to work with and learn from the best.

The State Constitutional Convention Question

At the 71^st NYSPSA Conference (hosted by Nazareth College in Rochester, NY), New York State and Local Politics took center stage. Among the highlights of the Conference were presentations and a Keynote Roundtable discussion of the upcoming Constitutional Convention (or Con-Con) vote.  As detailed in a previous blogpost, in the upcoming general election (November 7, 2017), New York voters will have the chance to vote on the constitutionally mandated question of whether or not to convene a constitutional convention with the purpose of reviewing and proposing revisions to the New York State Constitution. My section of the conference bought together some of the leading experts on New York State politics and reform. 

A group of scholars from the Hugh I. Carey Institute for Governmental Reform (Wagner College) and the Center for the Advancement of Public Integrity (CAPI) (Columbia Law School), presented their research on “Achieving Reform Through State Constitutional Change,” situating New York within a nationwide study of state constitutional reform efforts.   

Dr. Stephen Greenwald (left) leads a discussion following the presentation on Achieving Reform through State Constitutional Change. 

Dr. Robert Herbst provided an overview of the pros and cons of constitutional conventions, highlighting many of the positive, popular elements of New York’s Constitution which were the direct result of conventions past.  A contextual frame was provided by law professor and CAPI Director, Jennifer Rodgers, who detailed the group’s ongoing research:  a comparative analysis of state constitutional provisions. Their completed study (due out this summer) will serve as the basis for specific policy recommendations, would educate voters, and inform the convention delegates as they consider revision.  Dr. Stephen Greenwald emphasized how constitutional revision might enhance representative democracy by addressing existing dysfunctions, including the devolution of decision making autonomy of state legislators.

New York’s Broken Constitution (2016), 

co-authored by our presenters details

 issues with New York's current

 constitutional design.

Saturday’s plenary session was a roundtable presentation by some of the State’s other leading experts on New York State’s constitutional history. The discussion was moderated by Robert Bullock, Deputy Director of Operations at the Rockefeller Institute of Government (RIG). (A full biography of the Keynote Roundtable participants can be found here).

Christopher Bopst, one of the co-authors (along with Drs. Peter Galie and Gerald Benjamin) of New York’s Broken Constitution (2016), set up the context for the impending ballot question, by providing an overview of the constitution and the history past constitutional conventions. He emphasized the unique power held by New Yorkers (“We the People) to bypass the legislature and demand reform via the conventional ballot vote. The convention and delegate selection processes, including the external factors which influence public and organizational support and opposition, were addressed by Dr. Dullea (a participant in past conventions and an expert on convention politics).  Dr. Galie explained the arguments for and against reform, highlighting the ways in which a constitutional convention is uniquely different from politics “as usual.”

What did We Learn?

            There’s a need for reform:

Ø  New York’s Constitution dates back to 1894. The last time a convention comprehensively studied was 50 years ago (1967); the last time there was a systematic revision was 79 years ago (1938)

Ø  The speakers identified numerous issues for review and revision, including:

o   Public ethics and anti-corruption reform

o   Campaign Finance reform

o   Legislative reforms – to create a more participatory legislative process

o   Voting reforms – to promote turnout and ease restrictions on the right to vote

o   Criminal Justice Reforms

o   Education Policy Reforms

o   Judicial Reforms

o   Local government reform

Ø  The mandatory referendum is a rare opportunity for voters to bypass the legislature and demand review and revision on a multiplicity of issues that matter most to the voters.

There is Fear of a Convention:

Ø  An Unlimited Convention/no restrictions on the convention. Once convened, the argument goes, the delegates are without limit and might eliminate the good along with the bad.  Enviornmental groups, labor unions, and advocates for the needy are among the opposition groups who fear favorable provisions might be revised or excised.

Ø  The “same old politics” and political insiders will dominate the convention.

Ø  The convention will be costly. And  (as happened in 1967), proposed changes might get rejected in the end anyway.

There is a General Lack of Public Awareness:

Ø  For many New Yorkers, the state constitutional convention may not appear to be a viable path to reform simply because they do not know enough about the process.

Ø  Thus far, the State legislature has devoted few resources to educating the citizens about the upcoming ballot choice.  Most of the outside money that is being spent, is in opposition.

Ø  In past ballot votes, the plurality of voters declined to vote on the ballot question. 

Dr. Hank Dullea provided information on the Convention and Delegate Selection Process. He is the author of  Charter Revision in the Empire State: The Politics of New York's 1967 Constitutional Convention.

The presenters collectively provided a wealth of factual information and counter-arguments which would allow voters to make an informed choice come November.  Many of the anti-convention fears, they explained, are unfounded and reflect a misunderstanding of the rich history of the convention process:

Ø  There is, they remind us, much in the New York Constitution that is good – and most of which was added through the work of constitutional conventions.

Ø  Even in cases of “failed” conventions, as in 1967 when the voters rejected the proposed revisions, many of the conventions recommendations later made their way into the constitution through the legislative amendment process. 

Ø  What conventions offer is a unique opportunity for systematic study and recommendation – it is different than politics “as usual” because the particpants are broader, the mission is directed, and the work ultimately is subject to popular ratification.

Ø  The work of the convention will depend on the delegates selected – and this is process that is open to direct democratic participation. 

Ø  The costs of the convention will be offset by the potential benefits – for example, a consolidation of the judiciary and court systems alone could produce considerable savings.

A member of the audience, Dr. Michael Armato made the insightful observation that the outcome of the convention ballot question is likely to turn on the narrative and framing of the debate.  Dr. Galie described the eternal paradox for all reformers: if people believe that the “same old” of politics is bad, and reform is framed as the “same old” politics, then there is seemingly no solution: We are left to dwell on the dysfunction without ever turning the corner toward productive engagement and change. 

Dr. Sharon Murphy, the 2017 NYSPSA Program Chair, welcomes the audience to the Conference.  Dr. Murphy is a Professor of Political Science at Nazareth College, where the Conference was held. She is also a Daemen College alumna (BA, History and Government, 1980). 

How to Learn More    

The constitutional convention question is a unique opportunity for voters to compel study and review of the foundation of New York State's governance. The best way to make an informed decision on the ballot vote is to learn everything one can about the process. Sienna College's statewide polling has found that, although 69% of New York voters support calling a convention, more than two-thirds of them have not seen or read information on the upcoming vote.

The League of Women Voters, the Rockefeller Institute of Government, the Hugh I. Carey Institute for Governmental Reform, and the New York State Constitutional Convention Clearinghouse are a few good places to start if you want to learn more.  On these sites you will find details on the history and work of New York's past constitutional conventions, as well as information, and links to editorials and news coverage of the upcoming “Con-Con” vote. 

You may also contact me directly at lparshal@daemen.edu.

Dr. Lisa Parshall

Chairperson, State and Local Politics, New York State Political Science Association

Daemen College Students:

State and Local Politics (PSC 114) will be offered in Fall 2017 (Thursday 4-6:45).  Dr. Parshall is the Section Chair for State and Local Politics for the New York State Political Science Association (NYPSA) and a Key Votes Advisor (New York State) for Project Vote Smart.  Her research interests include New York State constitutional history and local government consolidation/reform.  She has presented her research on village government consolidation at multiple conferences.  For more information on the course, please contact lparshal@daemen.edu. 

Keeping an Eye on Justice Kennedy Continued

Taking “Judicial Notice”  

      

A few weeks ago, I wrote a blog post recommending that students keep their eye on Justice Anthony M. Kennedy in the ongoing legal battles over the Trump Administration’s travel ban.  Following the judicial invalidation of the initial Executive Order (Order No. 13769, issued January 27, 2017), upheld by a 3-0 ruling of the Ninth Circuit Court of Appeals, the Trump Administration opted to make revisions.  A revised version (No. 13780) was issued on March 6, 2017.  

On Wednesday, March 15, the revised ban was blocked by temporary restraining orders issued by the United States Federal District Courts in Hawaii and Maryland.  (A challenge by the State of Washington is still pending).  

Judge Derrick K. Watson, of the Federal District Court in Honolulu, found that procedural and other revisions did not remedy the central defects as previously identified by the courts.  In so ruling, the Federal Court took judicial notice of the public comments of Donald Trump, both as a presidential candidate and in his official capacity as President, as well as the commentary and explanations offered by White House staff and surrogates:

Because a reasonable, objective observer—enlightened by the specific historical context, contemporaneous public statements, and specific sequence of events leading to its issuance—would conclude that the Executive Order was issued with a purpose to disfavor a particular religion, in spite of its stated, religiously-neutral purpose, the Court finds that Plaintiffs, and Dr. Elshikh in particular, are likely to succeed on the merits of their Establishment Clause claim (CV. NO. 17-00050 DKW-KSC). 

U.S. Federal District Judge Derrick K. Watson
Photo Credit: Associated Press

In his immediate response to the decisions on his revised ban, President Trump has again vowed to appeal. Whatever the Circuit Courts decide, it seems likely that this time the matter will work its way all the way to the United States Supreme Court. 

What Will Kennedy Likely Notice?

The ruling by Judge Watson frames the legal issues in terms of religious (First Amendment) rights.  The federal government has already indicated a two-fold argument in response: 1) that the law is facially neutral and that the district court overstepped by inquiring into the law’s underlying motivations and 2) that the order is necessarily and legitimately related to the compelling purpose of protecting national security.

Although the Supreme Court has been generally deferential to executive claims of necessity that are based upon national security interests, as I pointed out in my previous blog post on this topic, Justice Kennedy has been particularly emphatic that national security need not and must not come at the cost of constitutional liberty. 

There are two other cases (one from 1992 and from just a few weeks ago) which potentially shed light on what might guide Kennedy’s consideration of the Trump Administration’s arguments in support of its travel ban.

U.S. Supreme Court Justice, Anthony M. Kennedy
Original photo credit: 
http://cdn.quotesgram.com/img/2/57/702418048-Getty_032712_JusticeAnthonyKennedy.jpg

Writing for the Court in, Church of Lukumi Babalu Aye v. Hialeah (508 U.S. 520) in 1992, Justice Kennedy invalidated a facially neutral ordinance prohibiting (ostensibly on public health grounds) the slaughtering of animals within city limits.  Kennedy rejected the claim of a facially neutral law, finding instead that the ordinance had been motivated by religious animus toward local practioners of the Santeria religion. The lack of neutrality, he found, could be determined from “both direct and circumstantial evidence”  including public and private commentary by local lawmakers in debating and discussing the ban. Kennedy’s opinion ruled that the law was neither neutral, nor generally applicable to all, nor sufficiently narrowly tailored to meet the  legitimate governmental concerns.  Kennedy stressed that the First Amendment “commits government itself to religious tolerance, and upon even slight suspicion that proposals…stem from animosity to religion or distrust of its practices, all officials must pause to remember their own high duty to the Constitution and the rights it secures.”

More recently, in a 5-3 ruling, Kennedy reiterated that racial bias has no legitimate place in the administration of justice.  His ruling in Pena-Rodriguez v. Colorado thus authorized the reconsideration of a jury verdict where it was subsequently revealed that a juror had made verbal statements in deliberations that reflected racial bias against the criminal defendant.  It was, Kennedy held, appropriate for a trial judges to consider such statements in retroactively determining whether the defendant’s Sixth Amendment right to a fair trial had been violated. Kennedy wrote:

The Nation must continue to make strides to overcome race-based discrimination. The progress that has already been made underlies the Court’s insistence that blatant racial prejudice is antithetical to the functioning of the jury system and must be confronted in egregious cases like this one despite the general bar of the no-impeachment rule. It is the mark of a maturing legal system that it seeks to understand and to implement the lessons of history.

Implementing the “Lessons of History”

So what are these lessons of history that mark the evolution of a “maturing legal system”? 

If (or when) the travel ban reaches the Supreme Court, it is not likely to escape judicial notice (Kennedy’s or others') that we recently observed the 75th anniversary of Korematsu v. United States (323 U.S. 214) in which the Supreme Court upheld President Franklin Roosevelt’s executive order interring Japanese Americans during World War II.  It is an unavoidable backdrop against which all claims of executive necessity are to be forever measured.  The 5-person majority in Korematsu did not question the executive branch’s motives nor did they challenge its determination that such sweeping measures were legitimately necessary.  As Justice Felix Frankfurter (in)famously noted in his concurrence, war powers and national security matters are constitutionally vested to the political branches and not to the courts. Korematus thus stands in the law books as a judicial validation of broad executive power in times of a national emergency or crisis.

But the insights of that ruling for the current justices (Kennedy perhaps included) may be drawn from the opinions of the dissenting justices who warned about animus and discrimination under the guise of facially neutral-justifications. Judicial validation of such claims, Justice Robert Jackson warned, are bound to become “a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes” (323 U.S. 214, Justice Robert Jackson, dissenting).

It is by no means a given that the conservative Kennedy will accept executive assertions of legitimate national security interests without inquiring into the alleged motivations behind the ban and without full and careful consideration of the competing religious claims raised in the state challenges.  

When Justice Kennedy “errs” in close cases, it is often on the side of liberty. Because the closely divided Court currently stands at 8 members (pending the confirmation of the late Justice Scalia’s replacement), whichever way the Supreme Court tends on the travel ban question, Kennedy’s views will be particularly critical to the outcome.  Kennedy’s romanticized conception of the judicial role, along with his willingness to consider evolving sensibilities, the maturation of the legal system and emergence of newly recognized rights, and a lower court ruling that seems perfectly pitched to Justice Kennedy’s ear – means there is much in the travel ban cases of which Kennedy can and likely will take careful notice himself. 

President Donald Trump displaying his signature on the travel
ban executive order.
Photo Credit: Associated Press 

PSC 305, American Constitutional Law is offered regularly in the Fall Semester. The course covers the evolution, scope, and relative powers of the legislative, executive, and judicial branches and the major constitutional doctrines of separated powers and federalism (federal versus state powers). We cover constitutional law as part of American political development and discuss contemporary constitutional controversies.